On Tuesday the Connecticut Supreme Court heard arguments from the lawyers for some of the families suing Remington Arms over the marketing and sale of the gun that Adam Lanza used almost 5 years ago. I wrote about this case before here, and wrote about another Newtown case here, if you’re interested.
The case was on appeal because Judge Bellis granted what Connecticut calls a “motion to strike” the plaintiff’s complaint. This is very similar to a federal 12(b)6 motion to dismiss. The motion challenges whether the facts alleged make out a cause of action under the law. The motion is often used when the complaint is trying to create a new legal theory, or stretch a little bit too far in existing legal theory.
Judge Bellis ruled that the plaintiffs’ complaint did not state legally sufficient claims for negligent entrustment and violations of Connecticut’s Unfair Trade Practice Act. Those two claims are the only ones that the plaintiffs have which could withstand the immunity Congress granted gun manufacturers and sellers in a federal law called the “The Protection of Lawful Commerce in Arms Act,” or PLCAA. Click here if you want to read the history of federal gun laws.
The judges appeared very aggressive to Remington’s attorney. While most of the argument focused on the negligent entrustment claim, some of the questions and argument were directed at the plaintiffs’ unfair trade practice claim.
It seems that the heart of the plaintiffs’ argument is that Remington directed an aggressive marketing campaign at younger men with a tendency to use the semi-automatic weapon the way that Adam Lanza used it that fateful day. The marketing literature describes the weapon as having a "military-proven performance" that makes "forces of opposition bow down." It’s funny because Remington’s lawyer said with a straight face that the XM15 is used for hunting and target practice. While it may be, Remington markets it another way.
I’m not so confident that the plaintiffs’ negligent entrustment claim will fly. I just don’t think the justices are excited about expanding that theory under these facts. If Adam Lanza had purchased the gun, and not his mother, maybe. However, the unfair trade practice claim I think has a better chance. Is it unfair or deceptive to market a weapon the way Remington does? Or to advertise it on violent video games like “Call to Duty.” Is it unscrupulous if you know or reasonably should know that a gun like this will get into an Adam Lanza’s hands?
The unfair trade practice issue on appeal is whether or not there has to be a business relationship between a plaintiff and the defendant. At the argument on Tuesday the court made it clear that they have never held this to be a requirement, and indeed Remington’s lawyer conceded as much. So the judges are going to be tested to find a way to make the unfair trade practice claim apply to a situation where Remington did not sell the gun directly to Adam Lanza. In fact, Remington doesn’t sell guns directly to consumers. Rather, they use a distribution network. Plaintiffs’ lawyer, Josh Koskoff, seemed to argue that the distribution network is simply a smokescreen to protect the gun manufacturers. This point seemed to ring true when Remington’s lawyer basically said that under no situation could a gun manufacturer be liable for what happened at Sandy Hook.
There’s no requirement in Connecticut’s unfair trade practice statute mandating a business relationship. In fact, the language says “any person” who suffers and “ascertainable loss” can bring a claim. The justices honed in on that language, and seemed challenged by Remington’s argument that that broad and plain language can only include individuals with a business relationship with a defendant.
Connecticut has a tremendous library of law on the unfair trade practice act. In fact, probably the most of any state in the country. So the judges have a lot to work with.
One of the justices seemed interested in using a “remoteness” test rather than a bright line requirement that the parties must have a business relationship. I think under that test, plaintiffs’ claims go back to the trial court. The problem plaintiffs may face is that this gun was sold through a distributor not directly to Adam Lanza, but rather to his mother. Nevertheless, if plaintiffs can come up with evidence that Adam Lanza responded to, or was impacted by the type of marketing literature that Remington uses, they may satisfy that remoteness requirement for the time being. And just maybe the Court will give the plaintiffs the opportunity to conduct discovery into those facts.
It was surreal, after the argument, to stand on the courthouse steps and watch part of the press conference and listen to a father of one of the murdered children read a prepared statement. The sadness was palpable. And also was the inescapable feeling that this is why law exists. Laws exist to govern relationships between people, between people and businesses, and businesses and businesses. This case is a powerful example of the law. So sad how it came to be.